The U.S. Environmental Protection Agency has, for the first time, proposed designating certain types of per- and polyfluoralkyl substances (PFAS) as hazardous materials under the nation’s Superfund waste cleanup program.

If finalized, the rule, expected to be published in the Federal Register in coming weeks, could trigger remedial actions under the Comprehensive Environmental Response and Liability Act for discharges of certain PFAS chemicals above set thresholds and enhance the government’s ability to recover cleanup costs from potentially responsible parties, according to EPA.

Often called “forever” chemicals, PFAS are notoriously difficult to destroy and have been linked to cancer, reproductive, cardiovascular, developmental and immunological effects in humans and laboratory animals.

The designation would apply to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), which have been the most studied of PFAS chemicals and are thought to present a substantial danger to human health and the environment. There are roughly 5,000 different chemicals in the entire class of PFAS.

Although environmental and public health advocates are praising EPA’s Aug. 26 announcement, wastewater utilities worry the action could expose them to increased liability, while business groups say it could cause Superfund cleanup costs to skyrocket.

What’s in the Proposal

The rule would trigger reporting of PFOA and PFOS releases, which EPA says would provide it with better data and the option to require cleanups and recover remediation costs. Releases of PFOA and PFOS that meet or exceed certain thresholds would have to be reported to the the agency's National Response Center, or to state or tribal entities with jurisdiction over emergency response planning.

EPA noted that releases of hazardous substances don’t always lead to the need to clean up a site or add it to the National Priorities List. However, the hazardous designation would give the agency more latitude to recover costs from a potentially responsible party, or to require the responsible entity to conduct the cleanup, when needed.

Additionally, federal entities that transfer or sell property would be required to provide a notice about the storage, release, or disposal of PFOA or PFOS on the property.

Senate Majority Leader Charles Schumer (D-N.Y.), along with Environment and Public Works Committee Chairman Tom Carper (D-Del.), and House Transportation and Infrastructure Committee Chairman Peter DeFazio are among the lawmakers who praised the EPA action. Dan Kildee, (D-Mich.), co-chair of the Congressional PFAS Task Force. described the proposal as “the first step to finally provide … communities with the resources they need to clean up these dangerous forever chemicals and ensure that polluters, not taxpayers, foot the bill.”

But wastewater utilities are concerned that they may be required to foot the bill for pollution they didn’t cause. Nathan Gardner-Andrews, chief advocacy officer at the National Association of Clean Water Agencies, told ENR that wastewater and stormwater utilities are “passive receivers” rather than the manufacturers of PFAS chemicals. “We are supportive of addressing the PFAS concerns out there, and designating them under CERCLA does give EPA some important tools to do that. The challenge for us, is that CERCLA is a hammer, not a scalpel.”

Gardner-Andrews says the proposal does not contain a carve-out from the existing Superfund law for wastewater utilities that NACWA had sought.  

“EPA indicated to us that the intent is not to come after municipalities and utilities, and that may be true," he said. "he problem with CERCLA, because of the way the law is written … is that a party that is bearing cleanup costs can also go after other potentially responsible parties (PRPs).” 

Without an exemption for wastewater utilities and municipalities in the Superfund law, even if EPA does not intend to go after them, “there’s nothing stopping other PRPs from coming after us and trying to get us to contribute to the costs of cleanup,” Gardner-Andrews said.